2026 INSC 1128 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2026

[ARISING OUT OF SLP (C) NO. 33319 OF 2026]

SANJAY PRASAD …APPELLANT

VERSUS

MADHUSUDAN DWIVEDI & ORS. …RESPONDENT S

O R D E R

DIPANKAR DATTA, J.

1. Although the issue under consideration has engaged the attention of this

Court in the past and appears to be no longer res integra, it continues

to arise with regularity and calls for further clarity and, if possible, a

conclusive determination.

2. When can an order passed by a Single Judge on an application for

contempt be amenable to a challenge in an intra -court appeal is the

broad issue that has engaged our attention in the course of hearing of

this appeal, which is directed against an interim order dated 3

rd

September, 2026

1

passed by a Single Judge of the High Court of

1

impugned order

2

Judicature at Allahabad, Lucknow Bench

2

in a pending application for

contempt

3

.

3. The appeal is at the instance of the alleged contemnor before the High

Court. He is aggrieved by the impugned order which, inter alia, records

as follows:

7. The reasons indicated in the above referred paragraphs of order

02.09.2026 are not justified for rejecting the claim of the petitioner(s)-

applicant(s). It is for the following reason(s): -

(i) While passing the order dated 17.03.2026 the Writ Court

considered the fact related to pendency of Special Appeal

challenging the order dated 13.12.2019 passed in Writ

Petition No.25178(SS) of 2018.

(ii) The delay in filing the special Appeal (Defective)

No.161/2021 till date has not been condoned and

therefore, the Special Appeal cannot be treated as Special

Appeal in the eyes of law.

(iii) The order of Writ Court dated 13.12.2019 by which the Writ

Court directed the side opposite to accommodate the

petitioner(s)-applicant(s) on the vacant posts is still intact

as the same is neither set aside, nor modified nor stayed.

(iv) The authorities were under obligation to comply the order

of the Writ Court and therefore as per order of the Writ

Court dated 13.12.2019 inclusion of 19 posts in the

requisition itself was bad in law.

(v) From a conjoint reading of order(s) dated 17.03.2026 and

13.12.2019, which is intact till date, passed by the Writ

Court it is crystal clear that the State is under obligation to

appoint the petitioner(s)-applicant(s) on the posts of

Assistant Prosecution Officer.

8. For the aforesaid reason(s), compliance affidavit is hereby

rejected.

9. List this case on 17.09.2026.

10. In case the order of the Writ Court is not complied with, the officer

concerned namely Sri …, Additional Chief Secretary, Department of

Home, Govt. of U.P., Civil Secretariat, Lucknow shall appear in person

for the purposes of proceeding further in the matter which includes

framing of charges.

11. It is to be noted that Sri … and therefore notice need not to be

issued.

2

High Court

3

Contempt Application (C) No. 2648 of 2026

3

4. Mr. Nataraj, learned Additional Solicitor General appearing for the

appellant, invited our attention to the order dated 17

th

March, 2026 of

the writ court allowing the writ petition

4

of the respondents, of which

contempt has now been alleged. According to him, the writ court, after

quashing the Office Memorandum dated 28

th

July, 2020 and a

consequential communique dated 14

th

August, 2020, had directed

consideration of the candidature of the respondents for recruitment to

the post of Assistant Prosecution Officers. The said order was duly

complied with by the appellant , who rejected the respondents’

candidature vide order dated 2

nd

September, 2026; and such order was

made part of the record by filing a compliance affidavit of even date.

5. Referring to J.S. Parihar v. Ganpat Duggar

5

, Mr. Nataraj contended

that once an order had been passed in compliance with the order of the

writ court, such order could not have been judicially reviewed in exercise

of contempt jurisdiction; the resulting order could be right or wrong but

a wrong order cannot by any stretch of imagination be held to amount

to deliberate or wilful violation and, thus, civil contempt within the

meaning of Section 2(b) of the Contempt of Courts Act, 1971

6

.

6. Relying on Lalith Mathur v. L. Maheswara Rao

7

, Mr. Nataraj argued

that a contempt court would exceed its jurisdiction if it were to examine

the validity or correctness of the order purportedly passed in compliance

4

WRIT A No. 8997 of 2022

5

(1996) 6 SCC 291

6

1971 Act

7

(2000) 10 SCC 285

4

with the court’s order; the proper course, in such a situation, is to

institute a fresh writ petition.

7. Mr. Nataraj finally contended that, irrespective of the above, it is well

established that for a person to be held in contempt – or even for

issuance of a notice of contempt – a clear case of wilful disobedience of

an order passed by the court must be made out, i.e., a deliberate action

to lower the prestige, dignity and majesty of the court. Reliance in this

connection was placed on the decisions in Niaz Mohd. v. State of

Haryana

8

, Kapildeo Prasad Sah v. State of Bihar

9

and Ashok Paper

Kamgar Union v. Dharam Godha

10

. However, it was contended by him

that by rejecting the compliance affidavit and, a fortiori, the order

rejecting the candidature of the respondents, there is every likelihood of

the Single Judge, in the present case, granting a substantive relief which

the writ court did not even grant under threat of contempt proceedings.

8. Mr. Nataraj, therefore, sought quashing of the order under appeal, with

liberty to the respondents to pursue legal remedy in accordance with

law.

9. In course of hearing, we had queried Mr. Nataraj as to whether a Special

Appeal under the Allahabad High Court Rules, 1952

11

framed by the High

Court lies against the impugned order. He answered in the negative.

8

(1994) 6 SCC 332

9

(1999) 7 SCC 569

10

(2003) 11 SCC 1

11

Rules

5

10. According to Mr. Nataraj, the impugned order is not one passed in

exercise of the jurisdiction to punish for contempt; hence, an appeal

under Section 19 of the 1971 Act would not be maintainable. Decisions

have been cited in support of such a proposition, which we need not

refer to in view of our agreement with the ratio laid down therein.

11. Mr. Nataraj has further referred to Rule 5 of Chapter VIII of the Rules

framed by the High Court providing for a Special Appeal and contended

that since jurisdiction to punish for contempt is essentially an exercise

of criminal jurisdiction, no Special Appeal would lie from the impugned

order.

12. Heavy reliance has been placed on paragraph 11(V) of the decision in

Midnapore Peoples' Coop. Bank Ltd. v. Chunilal Nanda

12

to contend

that an intra-court appeal would be available if the Rules of the High

Court provide for the same. Rule 5, it was contended, does not provide

for an appeal and hence, no Special Appeal would be maintainable before

the Division Bench of the High Court.

13. Reference was further made by Mr. Nataraj to a 3-Judge Bench decision

of this Court in Ajay Kumar Bhalla v. Prakash Kumar Dixit

13

, in

support of the contention that it is only the jurisdiction under Article 136

of the Constitution of India, 1950

14

that is open to be availed of by the

appellant against the impugned order.

12

2006 (5) SCC 399

13

2024 (12) SCC 159

14

Constitution

6

14. A recent decision of the Division Bench of the High Court in Subhash

Chandra v. Srikant Goswami

15

has also been referred to us by Mr.

Nataraj, which, according to him, has considered multiple precedents

laid down by this Court and the High Court. He has submitted that in

view thereof, the jurisdiction of this Court under Article 136 is the only

available remedy.

15. Subhash Chandra (supra), however, held that a Special Appeal would

lie from the order or judgment of a Single Judge in contempt cases

where the court, seized of the allegation of contempt , oversteps its

jurisdiction by addressing the merits of the original dispute, ensuring

that the substantive rights of the parties are protected in the gamut of

the extant rules framed by the relevant high court qua availability of

intra-court appeals.

16. Since we propose not to examine the impugned order on its own merits

but confine our consideration only to the question as to whether the law

permits a Special Appeal to be presented by the appellant against it,

learned counsel for the respondents was not called upon to answer.

17. On facts and in the circumstances, we are of the considered opinion that

the appellant could have presented a Special Appeal, and it is not quite

correct to contend that such an appeal would not lie.

18. Certain basic principles need reiteration. The power to punish for

contempt flows from Article 215 of the Constitution. Jurisdiction under

Article 215 is sui generis, and proceedings for civil contempt, as defined

15

2024 SCC Online ALL 5435

7

in Section 2(b) of the 1971 Act, are generally in the nature of a ‘Special

Civil Jurisdiction’. The 1971 Act merely provides the procedure to be

followed as part of due process, which a Judge of a high court must

follow while initiating proceedings for contempt. Once information is laid

before the court that the contemnors, allegedly, are in contempt of its

order leading to issuance of notice, followed by consideration of the

defence raised and thereafter a finding as regards guilt is returned upon

abidance by the laid down procedure, Section 12 of the 1971 Act while

providing for punishment specifies the limits of imprisonment that can

be ordered together with the quantum of fine. What ‘civil contempt’ is,

has been explained in a catena of decisions including Dharam Godha

(supra); however, since we are not concerned with criminal contempt,

we need not explore what this Court has said would amount to such

contempt.

19. What does the phrase ‘civil proceeding’ cover? A Constitution Bench in

S.A.L. Narayan Row v. Ishwarlal Bhagwandas

16

considered this

precise question. The Constitution Bench, while holding that proceedings

arising from the imposition of tax fall within the expression ‘civil

proceeding’ occurring in Article 133 of the Constitution, had the occasion

to observe as follows:

8. … The expression “civil proceeding” is not defined in the Constitution,

nor in the General Clauses Act. The expression in our judgment covers all

proceedings in which a party asserts the existence of a civil right conferred

by the civil law or by statute, and claims relief for breach thereof. A criminal

proceeding on the other hand is ordinarily one in which if carried to its

conclusion it may result in the imposition of sentences such as death,

16

AIR 1965 SC 1818

8

imprisonment, fine or forfeiture of property. It also includes proceedings in

which in the larger interest of the State, orders to prevent apprehended

breach of the peace, orders to bind down persons who are a danger to the

maintenance of peace and order, or orders aimed at preventing vagrancy

are contemplated to be passed. But the whole area of proceedings, which

reach the High Courts is not exhausted by classifying the proceedings as

civil and criminal. There are certain proceedings which may be regarded as

neither civil nor criminal. For instance, proceeding for contempt of court,

and for exercise of disciplinary jurisdiction against lawyers or other

professionals, such as Chartered Accountants may not fall within the

classification of proceedings, civil or criminal. … .

(emphasis ours)

20. Not too long back, a 3-Judge Bench in P. Mohanraj v. Shah Bros.

Ispat (P) Ltd.

17

, upon a survey of various precedents, held as follows:

83. What is clear from the aforesaid is that though there may not be any

watertight distinction between civil and criminal contempt, yet, an analysis

of the aforesaid authorities would make it clear that civil contempt is

essentially an action which is moved by the party in whose interest an order

was made with a view to enforce its personal right, where contumacious

disregard for such order results in punishment of the offender in public

interest, whereas a criminal contempt is, in essence, a proceeding which

relates to the public interest in seeing that the administration of justice

remains unpolluted. What is of importance is to note that even in cases of

civil contempt, fine or imprisonment or both may be imposed . The mere

fact that punishments that are awardable relate to Section 53 IPC would

not, therefore, render a civil contempt proceeding a criminal proceeding.

There is a great deal of wisdom in the finding of the Sanyal Committee

Report that the question whether a contempt is civil or criminal is not to be

judged with reference to the penalty which may be inflicted but with

reference to the cause for which the penalty has been inflicted.

(emphasis ours)

21. A profitable reference may also be made to the decision in U.N. Bora v.

Assam Roller Flour Mills Assn.

18

. There, this Court held:

8. We are dealing with a civil contempt. The Contempt of Courts Act, 1971

explains a civil contempt to mean a wilful disobedience of a decision of the

Court. Therefore, what is relevant is the “wilful” disobedience. Knowledge

acquires substantial importance qua a contempt order. Merely because a

subordinate official acted in disregard of an order passed by the Court, a

liability cannot be fastened on a higher official in the absence of knowledge.

When two views are possible, the element of wilfulness vanishes as it

17

(2021) 6 SCC 258

18

(2022) 1 SCC 101

9

involves a mental element. It is a deliberate, conscious and intentional act.

What is required is a proof beyond reasonable doubt since the proceedings

are quasi-criminal in nature. Similarly, when a distinct mechanism is

provided and that too, in the same judgment alleged to have been violated,

a party has to exhaust the same before approaching the court in exercise

of its jurisdiction under the Contempt of Courts Act, 1971. It is well open to

the said party to contend that the benefit of the order passed has not been

actually given, through separate proceedings while seeking appropriate

relief but certainly not by way of a contempt proceeding. While dealing with

a contempt petition, the Court is not expected to conduct a roving inquiry

and go beyond the very judgment which was allegedly violated. The said

principle has to be applied with more vigour when disputed questions of

facts are involved and they were raised earlier but consciously not dealt

with by creating a specific forum to decide the original proceedings.

22. One need not also strain too hard to look for authorities holding that

contempt jurisdiction is an independent jurisdiction of original nature. If

any authority is required, one may refer to the 3-Judge Bench decision

in High Court of Judicature at Allahabad v. Raj Kishore Yadav

19

.

23. Let us now take a look at the Rules framed by the High Court to ascertain

the cases/situations where a Special Appeal would lie. The relevant rule

reads thus:

Chapter VIII

5. Special appeal:- An appeal shall lie to the Court from a judgment (not

being a judgment passed in the exercise of appellate jurisdiction) in respect

of a decree or order made by a Court subject to the superintendence of the

Court and not being an order made in the exercise of revisional jurisdiction

or in the exercise of its power of superintendence or in the exercise of

criminal jurisdiction or in the exercise of the jurisdiction conferred by Article

226 or Article 227 of the Constitution in respect of any judgment, order or

award –

(a) of a tribunal, Court or statutory arbitrator made or purported to be

made in the exercise or purported exercise of jurisdiction under any Uttar

Pradesh Act or under any Central Act, with respect to any of the matters

enumerated in the State List or the Concurrent List in the Seventh Schedule

to the Constitution, or

19

(1997) 3 SCC 11

10

(b) of the Government or any officer or authority, made or purported to

be made in the exercise or purported exercise of appellate or revisional

jurisdiction under any such Act of one Judge.

24. The scheme of Rule 5 was considered by a Full Bench of the High Court

in Sheet Gupta v. State of U.P.

20

. It has been held there, and we too

agree that Rule 5 bars a Special Appeal against (i) a judgment/decree

or order passed in the exercise of appellate jurisdiction by a court subject

to the superintendence of the High Court; (ii) against a judgment/order

passed in the exercise of civil revisional jurisdiction; (iii) against a

judgment/order passed in the exercise of criminal jurisdiction; (iv)

against a judgment/order passed in the exercise of power of

superintendence under Article 227 of the Constitution; and (v) against

a judgment/order passed in the exercise of jurisdiction under Article 226

of the Constitution by a tribunal, court or statutory arbitrator mentioned

in clause (a) and the Government, officer or authority mentioned in

clause (b) thereof. This Court in Abhishek Gupta v. Dinesh Kumar

21

,

while approving Sheet Gupta (supra),

has held that a Special Appeal

would also lie at the instance of a non-party to the writ proceedings

wherein any order as is mentioned in clause (b) is under challenge,

subject to obtaining leave of the appellate court.

25. Having noted what Rule 5 ordains, we would now consider the decisions

cited by Mr Nataraj.

20

AIR 2010 All 46 (FB)

21

2025 SCC OnLine SC 2739

11

26. Chunilal Nanda (supra) is a decision of a coordinate Bench of this

Court. It considered, at length, the question of the appealability of

orders passed in contempt cases. Upon a Bank employee challenging an

enquiry initiated against him in a writ petition, a Single Judge of the

Calcutta High Court, while allowing the same, directed that the enquiry

should be concluded within the period stipulated in the order. The Bank

did not complete the enquiry, leading to the filing of an application for

contempt alleging a violation of the order. The Single Judge issued notice

to the respondents (the officers of the Bank), seeking an explanation as

to why they should not be held guilty of contempt. Various directions

were passed for replacing the earlier appointed Enquiry Officer and

directing that the Bank employee be allowed to resume work and be paid

salary and allowances. An appeal to the Division Bench, presented by

the officers of the Bank, came to be dismissed, whereupon this Court’s

jurisdiction under Article 136 was invoked. Two out of the three issues

that arose for decision before this Court read:

(1) Where the High Court, in a contempt proceeding, renders a decision on

the merits of a dispute between the parties, either by an interlocutory order

or final judgment, whether it is appealable under Section 19 of the

Contempt of Courts Act, 1971? If not, what is the remedy for the person

aggrieved?

(2) Where such a decision on merits is rendered by an interlocutory order

by a learned Single Judge, whether an intra-court appeal is available under

clause (c)(xv) of the Letters Patent?

27. Noticing the precedents available in the field as well as on consideration

of the provisions of the 1971 Act, the Court summed up the position,

insofar as the first issue is concerned, as follows:

12

11. The position emerging from these decisions, in regard to appeals

against orders in contempt proceedings may be summarised thus:

I. An appeal under Section 19 is maintainable only against an order or

decision of the High Court passed in exercise of its jurisdiction to punish for

contempt, that is, an order imposing punishment for contempt.

II. Neither an order declining to initiate proceedings for contempt, nor an

order initiating proceedings for contempt nor an order dropping the

proceedings for contempt nor an order acquitting or exonerating the

contemnor, is appealable under Section 19 of t he CC Act. In special

circumstances, they may be open to challenge under Article 136 of the

Constitution.

III. In a proceeding for contempt, the High Court can decide whether any

contempt of court has been committed, and if so, what should be the

punishment and matters incidental thereto. In such a proceeding, it is not

appropriate to adjudicate or decide any issue relating to the merits of the

dispute between the parties.

IV. Any direction issued or decision made by the High Court on the merits

of a dispute between the parties, will not be in the exercise of ‘jurisdiction

to punish for contempt’ and, therefore, not appealable under Section 19 of

the CC Act. The only exception is where such direction or decision is

incidental to or inextricably connected with the order punishing for

contempt, in which event the appeal under Section 19 of the Act, can also

encompass the incidental or inextricably connected directions.

V. If the High Court, for whatsoever reason, decides an issue or makes any

direction, relating to the merits of the dispute between the parties, in a

contempt proceedings, the aggrieved person is not without remedy. Such

an order is open to challenge in an intra-court appeal (if the order was of a

learned Single Judge and there is a provision for an intra-court appeal), or

by seeking special leave to appeal under Article 136 of the Constitution of

India (in other cases).

The first point is answered accordingly.

(emphasis ours)

28. Regarding the second issue, it was held thus:

15. Interim orders/interlocutory orders passed during the pendency of a

case, fall under one or the other of the following categories:

(i) Orders which finally decide a question or issue in controversy in the main

case.

(ii) Orders which finally decide an issue which materially and directly affects

the final decision in the main case.

(iii) Orders which finally decide a collateral issue or question which is not

the subject-matter of the main case.

(iv) Routine orders which are passed to facilitate the progress of the case

till its culmination in the final judgment.

(v) Orders which may cause some inconvenience or some prejudice to a

party, but which do not finally determine the rights and obligations of the

parties.

13

16. The term ‘judgment’ occurring in clause 15 of the Letters Patent will

take into its fold not only the judgments as defined in Section 2(9) CPC and

orders enumerated in Order 43 Rule 1 CPC, but also other orders which,

though may not finally and conclusively determine the rights of parties with

regard to all or any matters in controversy, may have finality in regard to

some collateral matter, which will affect the vital and valuable rights and

obligations of the parties. Interlocutory orders which fall under categories

(i) to (iii) above, are, therefore, ‘judgments’ for the purpose of filing appeals

under the Letters Patent. On the other hand, orders falling under categories

(iv) and (v) are not ‘judgments’ for the purpose of filing appeals provided

under the Letters Patent.

29. The decision in Chunilal Nanda (supra) has guided subsequent

coordinate Benches of this Court in deciding the point of maintainability

of appeals from orders passed on applications for contempt, viz.

Tamilnad Mercantile Bank Shareholders Welfare Assn. (2) v. S.C.

Sekar

22

, Sujitendra Nath Singh Roy, v. State of West Bengal

23

and

ECL Finance Ltd. v. Harikrishan Shankarji Gudipati

24

, as well as a

Bench of three Judges in Ajay Kumar Bhalla (supra). In the latter

decision, the law laid down in Chunilal Nanda (supra), as regards

maintainability of an intra-court appeal against an order on a contempt

petition other than an order of punishment, subject to the rules framed

by each high court, stands approved.

30. In Ajay Kumar Bhalla (supra), the respondent was removed from

service. The said order of removal was successfully challenged before

the writ court. A Division Bench set aside the order of removal from

service and observed that the minor penalty proposed by the Disciplinary

Authority would be the penalty in the case. While directing his

22

(2009) 2 SCC 784

23

(2015) 12 SCC 514

24

(2018) 13 SCC 142

14

reinstatement with all consequential benefits, but without any back

wages, it was also directed that the date of reinstatement will relate to

the date of his original removal from service for the purposes of pay

fixation, seniority, and all other consequential benefits , including

promotions. The order was required to be implemented not later than 8

weeks from the date. Upon an application for contempt being moved by

the respondent, a Single Judge held that the contemnors were in

contempt of the order insofar as it related to pay fixation, seniority and

all other consequential benefits, including promotion. Opportunity was

granted to the contemnors to issue a fresh order granting promotion to

the respondent in the manner as directed. It was observed that if the

contemnors did not issue appropriate orders granting the respondent

promotion within the time granted, the case would be heard for

sentencing on the next date of hearing. A letters patent appeal was filed

against the order of the Single Judge, whereupon the Division Bench

rejected the said appeal as not being maintainable on the ground that

an appeal under Section 19 of the 1971 Act would not be maintainable

since the Single Judge had imposed no punishment and the observations

made by the Single Judge were not to be construed as crystallising any

right in favour of the respondent. The order of dismissal was carried in

appeal before this Court. In the circumstances, the narrow issue which

fell for consideration was whether the letters patent appeal against the

order of the Single Judge was maintainable.

15

31. We may profitably quote the relevant passage from the said decision

hereunder:

17. The judgment of the Division Bench lost sight of the fact that whether

the appeal was maintainable would have to be construed on a plain reading

of the judgment of the Single Judge. Two aspects were covered by the

judgment of the Single Judge:

(i) Firstly, a finding that the appellants were guilty of contempt of the order

dated 24-12-2019; and

(ii) Secondly, that the respondent was entitled to promotion to the rank of

IG.

The first aspect is not amenable to an appeal under Section 19 at the

present stage. The finding that the respondent was entitled to promotion to

the rank of IG would be amenable to an appeal in terms of the law laid

down by this Court in Midnapore Peoples’ Coop. Bank, more particularly in

para 11(V) which has been extracted above.

32. The decision in Ajay Kumar Bhalla (supra), therefore, does not

advance the cause of the appellant.

33. Without attempting to give an exhaustive list, we think that an intra-

court appeal would lie, if permitted by the relevant Letters Patent or the

relevant rules framed by a high court from the order of a Single Judge

passed on an application for contempt (arising out of a writ petition)

answering the tests of a ‘judgment’ as explained in clauses (i) to (iii) of

paragraph 15 of Chunilal Nanda (supra) in cases/situations such as:

(i) an order issuing direction to a party who was either not bound by the

original/parent order, or, who was originally not a party to the writ

proceedings, except where such party steps into the shoes of the original

respondent and the obligation to secure compliance rests on him; (ii) an

order requiring compliance with the original/parent order once again,

upon examining the correctness of the purported order of compliance

and rejecting such order; (iii) an order which travels beyond the

original/parent order, of which contempt is alleged, and issues directions

16

not present in the original/parent order; and (iv) an order deciding

disputed questions of fact/law having the effect of finally determining

rights of parties.

34. At this stage, it needs no emphasis that no appeal under Section 19(1)

of the 1971 Act would be maintainable unless an order is passed by a

Single Bench punishing a contemnor in the exercise of its jurisdiction to

punish for contempt.

35. Though the matter could have rested here, for further clarity and

possible conclusive determination, we need to delve deeper into a

question arising from the text of Rule 5. Rule 5 bars a Special Appeal

from an order passed in criminal jurisdiction and we have noticed

decisions of the High Court, referred to in Subhash Chandra (supra),

that contempt proceedings being quasi-criminal in nature, it is

essentially exercise of criminal jurisdiction by the Court

25

; also that,

since an appeal under Section 19(1) of the 1971 Act has been provided

against an order passed in the jurisdiction to punish for contempt, no

other appeal will lie

26

.

36. We, thus, move on to the next question for answering it. Are all orders

passed in contempt proceedings prior to the imposition of punishment,

though essentially interlocutory in nature and capable of affecting the

rights of the parties, to be regarded as having been passed in the

exercise of criminal jurisdiction so as to attract the bar under Rule 5

25

Hub Lal Yadav v. Mahendra 2017 ADJ Online 0638

26

Jagdamba Prasad v. Balgovind Neutral Citation No. - 2016 : AHC : 77023-DB

17

against maintainability of a Special Appeal? We think not! If indeed that

is regarded as the correct legal position, no interim order passed in the

exercise of contempt jurisdiction can be the subject matter of challenge

in a Special Appeal under Rule 5 on its plain text, much less orders as

are referred to in paragraph 69 of the decision in Subhash Chandra

(supra). In effect, no order other than an order of punishment imposed

by a Single Judge would be amenable to an intra-court appeal except

under Section 19(1) of the 1971 Act, and in every such case where the

Judge seized of the contempt passes an order determining rights and

liabilities, thereby meeting the test of a judgment as explained in

Chunilal Nanda (supra), the jurisdiction of this Court under Article 136

would seem to be the sole remedy.

37. No doubt, decisions are legion holding that proceedings for contempt are

quasi-criminal in nature; however, it has to be borne in mind that quasi

is the Latin for ‘resembling, but not actually being’. In law, when it is

said that a proceeding is quasi-judicial in nature, what is meant is that

such proceeding has some attributes of a judicial proceeding but is not

the latter in the strict sense and does not carry all the trappings thereof.

In light of the above meaning, contempt being quasi-criminal in nature

means that it resembles criminal law in its consequences of conviction

and punishment, but is not actually criminal prosecution. The trial is

neither for an offence punishable under the Indian Penal Code,

18

1860

27

/Bharatiya Nyaya Sanhita, 2023

28

/other penal laws nor is the guilt

determined in terms of the procedure spelt out in the Code of Criminal

Procedure, 1973

29

/Bharatiya Nagarik Suraksha Sanhita, 2023

30

/other

procedural laws.

38. However, in the light of the decisions in S.A.L. Narayan Row (supra)

and P. Mohanraj (supra), we hold that since proceedings for ‘civil

contempt’ are not resolved in exercise of ‘criminal jurisdiction’, the

precedents holding to the contrary may no longer be good law.

39. Having said that, one important aspect bears consideration, albeit from

a different standpoint. We are alive to the law laid down by a 3-judge

Bench in Ram Kishan Fauji v. State of Haryana

31

, which arose in the

context of the maintainability of an intra-court appeal against an order

of a Single Judge rendered in proceedings under Article 226 of the

Constitution. The writ proceedings in that case had their genesis in

allegations of criminal misconduct and culminated in a challenge to

proceedings arising therefrom. The question before the Court was

whether, notwithstanding the exercise of the extraordinary jurisdiction

under Article 226, the Single Judge could be said to have exercised

‘criminal jurisdiction’ within the meaning of the applicable Letters Patent

so as to attract the exclusion of an intra-court appeal, the ratio of which

27

IPC

28

BNS

29

Cr. PC

30

BNSS

31

(2017) 5 SCC 533

19

appears to have weighed heavily in the minds of the Judges of the

Division bench deciding Subhash Chandra (supra).

40. Ram Kishan Fauji (supra), though held that a high court exercising

writ jurisdiction under Article 226 of the Constitution in respect of

matters having originated from criminal laws exercises a ‘criminal

jurisdiction’, is not an authority for the question arising for decision

before us. We could have skirted a discussion on the said decision.

Nevertheless, maintainability of intra-court appeals being the major

point of debate before us though in contempt cases, we feel the need to

reflect on it.

41. The decision in Ram Kishan Fau ji (supra), properly construed,

pertained to the maintainability of an intra-court appeal from an order

passed by a Single Judge of the high court in a writ petition, where the

lis itself had its genesis in the criminal law. Thus, this Court, while

construing the expression ‘criminal jurisdiction’ occurring in the relevant

Letters Patent, held that the nature of the subject -matter of the

proceeding, and not merely the constitutional source of the power

invoked, would be germane. Thus understood, Ram Kishan Fauji

(supra) undoubtedly constitutes a key authority in the jurisprudential

canvas wrapped around the scope of the expression ‘criminal

jurisdiction’ in the context of a writ petition seeking adjudication upon a

controversy emanating from the criminal substratum. That much of the

decision is neither capable of being overlooked nor lightly distinguished.

But a principle evolved in writ jurisdiction dealing with a criminal lis

20

cannot be transplanted en bloc into the sui generis jurisdiction of

contempt. To do so would be to let the origin of the dispute determine

the nature of jurisdiction actually exercised.

42. In this regard, it is important to bear in mind that the question whether

an intra-court appeal lies is, in the first instance, governed by the Letters

Patent or the rules applicable to each high court. In Ram Kishan Fauji

(supra), while considering the scope of the expression ‘criminal

jurisdiction’ occurring in the applicable Letters Patent, this Court, in

paragraph 45, proceeded on the basis that where the subject-matter of

the writ proceeding had its genesis in criminal law, the jurisdiction

exercised by the Single Judge under Article 226 would be regarded as

criminal jurisdiction, thereby attracting the exclusion of an intra-court

appeal. The relevant observations in paragraph 45 read as follows:

45. The aforesaid argument suffers from a fundamental fallacy. It is

because the submission is founded on the plinth of whether the writ

jurisdiction has been exercised under Article 226 or 227 of the Constitution.

It does not take note of the nature of jurisdiction and the relief sought. If

the proceeding, nature and relief sought pertain to anything connected with

criminal jurisdiction, intra-court appeal would not lie as the same is not

provided in Clause 10 of the Letters Patent. Needless to emphasise, if an

appeal in certain jurisdictions is not provided for, it cannot be conceived of.

Therefore, the reliance placed upon the larger Bench authority in Hari

Vishnu Kamath [Hari Vishnu Kamath v. Ahmad Ishaque, (1954) 2 SCC 881

: AIR 1955 SC 233] does not render any assistance to the argument

advanced by the learned counsel for the respondent State.

(emphasis ours)

43. With respect, the reasoning in paragraph 45 of Ram Kishan Fauji

(supra) is confined to its own statutory context and is not of universal

application. Under a Letters Patent which generally allows an appeal

from the judgment of a Single Judge to a Division Bench and entails no

21

exclusion in respect of an order passed in exercise of writ jurisdiction,

merely because the subject-matter of the proceeding has its roots in

criminal law, there is no warrant to read into that provision an exclusion

which the Letters Patent itself does not contain. Indeed, though in a

different context, the principle recognised by this Court in Vinita M.

Khanolkar v. Pragna M. Pai

32

, is that an appeal under a Letters Patent

would be maintainable unless it is excluded by statute. There, this Court,

in the context of the Specific Relief Act, 1963, held:

3. Now it is well settled that any statutory provision barring an appeal or

revision cannot cut across the constitutional power of a High Court. Even

the power flowing from the paramount charter under which the High Court

functions would not get excluded unless the statutory enactment concerned

expressly excludes appeals under letters patent. No such bar is discernible

from Section 6(3) of the Act. It could not be seriously contended by learned

counsel for the respondents that if clause 15 of the Letters Patent is invoked

then the order would be appealable. Consequently, in our view, on the clear

language of clause 15 of the Letters Patent which is applicable to Bombay

High Court, the said appeal was maintainable as the order under appeal

was passed by learned Single Judge of the High Court exercising original

jurisdiction of the court. Only on that short ground the appeal is required

to be allowed.

44. The distinction is vital: an exclusion from the Letters Patent jurisdiction

pertains to a legislative prescription and cannot be supplied merely by

characterising the subject-matter of the lis as criminal. It assumes

pronounced significance especially considering the facts borne out in the

present case. In the conventional sense and as held in S.A.L. Narayan

Row (supra) and P. Mohanraj (supra), contempt is neither strictly

criminal nor strictly civil. In the case of civil contempt, the proceeding is

32

(1998) 1 SCC 500

22

geared essentially towards securing obedience to an order of the court

rather than towards the punishment of an offence in the ordinary

criminal-law sense. To transpose the ratio of Ram Kishan Fauji (supra)

from its setting to the present milieu, merely because the contempt

proceedings may, in a given case, culminate in punishment, including

imprisonment or fine, cannot, by itself, transmute its jurisdictional

character. Contempt jurisdiction being sui generis, in our considered

view, any attempt to compartmentalise it into rigid procedural categories

for the purpose of determining the availability of an intra-court appeal

must be eschewed. To mechanically place contempt proceedings within

a pre-defined category, and to make the maintainability of an appeal

turn solely on such categorisation would be to disregard the distinctive

nature of the jurisdiction itself.

45. In Chunilal Nanda (supra), this Court carved out a carefully delineated

field where an order passed in contempt proceedings becomes amenable

to an intra-court appeal, i.e., where the contempt court travels beyond

the precincts of contempt jurisdiction and decides the merits of the

underlying lis or determines substantive rights. Such venturing into the

merits was unequivocally held not to be an exercise of the ‘jurisdiction

to punish for contempt’ and, consequently, an intra-court appeal against

the same would be maintainable, subject to the relevant rules of the

high court permitting it. The later exposition in Ajay Kumar Bhalla

(supra) reaffirms that distinction – between a finding of contempt on the

one hand, and a direction adjudicating upon or affecting substantive

23

rights flowing from the underlying lis on the other. These decisions make

it clear that a broad-brush description of contempt as criminal, quasi-

criminal, or possessing attributes of criminal proceedings cannot, ipso

facto, attract exclusion against orders passed in the exercise of contempt

jurisdiction. The determinative question is not whether contempt entails

punitive consequences, but what jurisdiction the Court was actually

exercising when it passed the order impugned. Nomenclat ure alone

cannot answer that question!

46. It is in this narrow but important compass that we find ourselves unable

to accede to an unqualified extension of Ram Kishan Fauji (supra) to

all proceedings for contempt. If mere possibility of punishment were

sufficient to place contempt within the fold of ‘criminal jurisdiction’, the

carefully sustained distinction between the sui generis contempt

jurisdiction and the ordinary criminal jurisdiction would lose its meaning,

and the principle recognised in Chunilal Nanda (supra) would be

rendered precarious. For the present discussion and subject to what we

say hereafter, we would assume that Ram Kishan Fauji (supra) has

legitimate, though limited, field of operation where the lis before the writ

court is, in substance, criminal. But whether that principle can be

pressed into service to oust an intra-court appeal in contempt

proceedings, irrespective of the nature of the order and the jurisdiction

actually exercised, is a question of some moment — more so, when

several decisions of the High Court have proceeded on the premise that

24

contempt jurisdiction, wearing the garb of a criminal proceeding, bars a

Special Appeal.

47. It is trite that criminal matter, criminal proceeding and criminal

jurisdiction though inter-related are conceptually distinct. A criminal

matter is the genus. It denotes the subject matter which has a criminal

flavour, where penal consequence is involved. A crime committed, an

offence alleged punishable under the IPC/BNS, an FIR or a complaint

requiring investigation/inquiry – all are criminal matters at large. When

that criminal matter is brought before a court of law or a competent

authority in the form prescribed by law – be it an FIR, a complaint under

Section 200, Cr. PC/Section 223, BNSS, a charge-sheet, a bail

application, a revision, an appeal – the matter ripens and takes the form

of a criminal proceeding. Every proceeding therefore is a matter, but

every matter may not have yet become a proceeding. Criminal

jurisdiction is the authority of the court to entertain, try and decide that

criminal proceeding arising out of the criminal matter. It is the power to

adjudicate. It is conferred by the statute, viz. the Cr. PC/BNSS or special

law in terms of territory, subject matter and hierarchy. In short, a

criminal matter gives rise to a criminal proceeding, which in turn can

only be decided by a Court in exercise of its criminal jurisdiction. It is a

progression: matter-> proceeding-> jurisdiction.

48. Having regard to our understanding of what ‘criminal jurisdiction’ is, the

construction of ‘criminal jurisdiction’ in Ram Kishan Fauji (supra)

cannot apply ex proprio vigore in contempt proceedings.

25

49. Even otherwise, in the light of the foregoing discussion and for those to

follow, we have our doubts as to whether Ram Kishan Fauji (supra)

has laid down correct law on the interpretation of the Letters Patent

governing the relevant high courts, the text of Article 226, and settled

judicial principles regarding the exercise of power thereunder. The

Constitution confers the power to issue prerogative writs under Article

226 on the high courts for the enforcement of any of the Fundamental

Rights or for any other purpose. It is a high prerogative, extraordinary

original ‘Constitutional Writ Jurisdiction’. Writ remedy under Article 226,

being a public law remedy, its invocation presupposes a public law

element, i.e., infringement of a legally protected right and failure of

public duty. Existence of the jurisdiction does not depend on whether

the factual matrix originates in civil or criminal law. What is relevant is

the nature of the grievance: whether a legally protected right has been

infringed and also as to whether the right claimed is capable of being

judicially enforced through a writ. The subject matter of a writ petition

– whether having its roots in contract, service, taxation or criminal

complaint – is not decisive of the nature of jurisdiction; what is decisive

is the character of the lis and the nature of relief sought. Merely because

the right asserted has its origin in a statute containing criminal elements

cannot convert the special and exclusive constitutionally conferred ‘writ

jurisdiction’ on the high courts into ordinary ‘criminal jurisdiction’ to

defeat an intra-court appeal under the Letters Patent.

26

50. Moving forward, the decision in Ram Kishan Fauji (supra), with

respect, proceeds on the premise that Article 226 contains within it two

jurisdictions – civil and criminal – and that the subject matter of the lis

can determine the nature of the jurisdiction. Neither historical context

nor the constitutional text nor the scheme of the Letters Patent nor

settled judicial principle prior to such decision supports this division as

well as the view that the writ court’s dealing with a criminal matter would

amount to the exercise of ‘criminal jurisdiction’, thereby barring an intra-

court appeal. The ratio that a writ arising from a criminal substratum is

‘criminal jurisdiction’ for clause 10 or clause 15 of the Letters Patent, as

the case may be, is a judicial invention which the framers of the Letters

Patent did never visualise, for, in 1862 there was no Article 226, and writ

jurisdiction after the advent of the Constitution was itself not

contemplated as civil or criminal. Article 226, in plain terms, confers a

single, original, special, and extraordinary constitutional jurisdiction.

Such jurisdiction is also neither civil nor criminal, but sui generis. It is

also instructive that the very description or allocation of writ petitions

before a High Court or this Court as ‘civil’ or ‘criminal’ does not, per se,

furnish a principled basis for ascertaining the nature of the jurisdiction

exercised under Article 226. Such classification is, at best, a matter of

administrative convenience, designed to facilitate the allocation and

listing of cases on the administrative side, and cannot be elevated into

a substantive division of the constitutional jurisdiction conferred by

Article 226. The mere fact that a writ petition is placed or described

27

under a ‘criminal’ category, for purposes of roster or administrative

assignment, cannot convert the sui generis constitutional jurisdiction

exercised therein into ‘criminal jurisdiction’. The jurisdiction remains, as

conferred by Article 226; what may vary from case to case is the nature

of the lis, the right asserted, and the relief sought. By importing the test

of nature of subject matter, the decision in Ram Kishan Fauji (supra)

converts exercise of jurisdiction in every writ petition involving any

criminal element, be it a challenge to an FIR, an arrest, a chargesheet,

an externment, etc., into ‘criminal jurisdiction’. The result is that an

order refusing to quash an FIR, which determines criminal guilt of none

and does not involve any punishment, is treated on a par with a

conviction and sentence, thereby barring an intra-court appeal. Thus,

what Ram Kishan Fauji (supra) does is to conflate the high prerogative

writ jurisdiction with the ordinary criminal jurisdiction, and creates an

asymmetry: an intra-court appeal arising out of a writ petition, say, in a

land acquisition matter or in a taxation matter, would be permitted,

which might involve infringement of Article 300A or Article 265 of the

Constitution, respectively, which are non-Fundamental Rights, but when

it comes to loss of liberty of a citizen under Article 21, he cannot. He

would have, in such case, no other remedy but to approach this Court

under Article 136 which, per the parent decision of this Court in Pritam

Singh v. State

33

interpreting Article 136, is discretionary, and the

power thereunder should be exercised only in special circumstances. Not

33

AIR 1950 SC 169

28

many people can afford to travel to Delhi to file a special leave petition.

Long distance is not the only disabling factor; heavy expenses for

boarding/lodging and for the proper presentation of a case and

reasonable representation before this Court are also involved ,

notwithstanding what science and technology have helped the system

to achieve. The Constitution Bench in Anita Kushwaha v. Pushap

Sudan

34

has laid down the law that access to justice is a facet of Articles

14 and 21. The wide and expansive writ jurisdiction which could be

exercised by a Division Bench (an appeal being a continuation of the lis),

to our mind, has been judicially restricted and curtailed in pursuance of

an approach adopted in Ram Kishan Fauji (supra), which tends to

violate Articles 14 and 39A; resultantly, it is access to justice which is

rendered a casualty.

51. That apart, one cannot overlook that a right of appeal, being a creature

of a statute, is not a matter of procedure but a substantive, vested and

valuable right. However, where the language conferring a right of appeal

is ambiguous or admits of two constructions, the Court must lean in

favour of an expansive interpretation, not a restrictive one. It is the

construction which enlarges and sustains the right, thereby, advancing

the remedy that must be preferred to a narrow and constricted view

which impairs or defeats such right. This particular aspect missed the

notice of this Court while deciding Ram Kishan Fauji (supra).

34

(2016) 8 SCC 509

29

52. We are conscious that the decision in Ram Kishan Fauji (supra) is a 3-

Judge Bench decision, which would normally be binding on us.

Nonetheless, for the reasons aforesaid, and more particularly the

Constitution Bench decision in Anita Kushwaha (supra), we consider it

proper to make a reference for consideration by an appropriate Bench,

subject to such order as the Chief Justice of India may issue on the

administrative side. The terms of reference are framed as follows:

Does the decision in Ram Kishan Fauji v. State of Haryana , (2017)

5 SCC 533 correctly interpret the Letters Patent governing the various

high courts on maintainability of intra-court appeals in the light of the

nature of jurisdiction conferred by Article 226 of the Constitution,

adverted to above? Does the ratio not, effectively, negate proper

access to justice at the intra-court appellate level, apart from creating

a division in Article 226 not contemplated by the framers of the

Letters Patent or the Constitution? Should the decision in Ram

Kishan Fauji (supra) be revisited in view of the discussions in

paragraphs 49 to 51 of this opinion?

53. Reverting to the case at hand, the directions given in the impugned order

by the High Court have been noted above. The compliance affidavit

containing the order of rejection passed in purported compliance with

the order dated 17

th

March, 2026, has been rejected. Whether or not

the Single Judge exceeded his jurisdiction in so rejecting is a matter that

the appellant can well urge the Bench having determination to hear

Special Appeals to examine.

30

54. We, therefore, are not persuaded to entertain and examine the

contentions raised by Mr. Nataraj on merits. The same are left open to

be urged in a Special Appeal, which the appellant may present within a

fortnight from the date of this order if so advised. If presented, the

appeal may be decided on its own merits and in accordance with law by

the appellate Bench.

55. The appeal stands disposed of in the aforesaid terms. The reference

made herein shall, however, remain pending for consideration by the

appropriate Bench.

56. For a period of two months from this date, the contempt petition before

the Single Judge shall remain stayed.

57. For the reasons recorded in paragraphs 49 to 51 and the questions

framed in paragraph 52 hereinabove and in view of our consequent

respectful disagreement with the enunciation of law in Ram Kishan

Fauji (supra), this opinion may be placed by the Registry before the

Chief Justice for appropriate orders on the administrative side.

…………………………………J.

DIPANKAR DATTA

..……………………………….J.

SHEEL NAGU

New Delhi;

October 14, 2026.